806 F.

2d 1471
55 USLW 2398

UNITED STATES of America, Plaintiff-Appellee,

v.
Frank William RUCKMAN, Defendant-Appellant.
No. 85-2731.

United States Court of Appeals,

Tenth Circuit.
Dec. 18, 1986.

Brent D. Ward, U.S. Atty., Bruce C. Lubeck, Asst. U.S. Atty., Salt Lake
City, Utah, for plaintiff-appellee.
Mark A. Besendorfer, Midvale, Utah, for defendant-appellant.
Before McKAY, TACHA and McWILLIAMS, Circuit Judges.
McWILLIAMS, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance
in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e).
The cause is therefore ordered submitted without oral argument.

Frank William Ruckman was convicted August 7, 1985, by a jury for the
unlawful possession of destructive devices within the meaning of 26 U.S.C.
Sec. 5845(f)(3), namely, the possession of 13 anti-personnel booby traps which
were not registered to Ruckman in the National Firearms Registration and
Transfer Record as required by 26 U.S.C. Sec. 5841, all in violation of 26
U.S.C. Sec. 5861(d). Ruckman was given a suspended sentence and placed on
probation for three years. Ruckman now appeals. We affirm.

Prior to trial, Ruckman moved to suppress the use at trial of any and all
physical evidence seized in a warrantless search of his "home." This search
resulted in the seizure, inter alia, of the items which formed the basis for the

charge above referred to. No testimony was offered at the hearing on the
motion to suppress, counsel for Ruckman and the United States being in
apparent agreement as to the critical facts. After argument of counsel, which
included considerable colloquy between counsel and the court, the court, by
minute order, denied the motion without any comment. Accordingly, we do not
have benefit of the trial court's thinking on the issue raised.
4

From the record, it is agreed that the "home" which was searched by the
authorities was a "cave" located in a remote area some 24 miles northeast of St.
George, Utah, on land owned by the United States and controlled by the
Bureau of Land Management (BLM). It is referred to as being a "natural cave,"
as opposed, apparently, to a "man-made cave." Ruckman had lived in and
around the cave some eight months prior to the events which formed the basis
for the present proceeding. Ruckman had attempted to "enclose" the cave by
fashioning a crude entrance wall from boards and other materials which
surrounded a so-called "door."

The fact that Ruckman was living in the cave area apparently became known to
the local authorities. A state warrant calling for Ruckman's arrest issued when
Ruckman failed to appear in state court to answer a misdemeanor charge. State
and federal authorities later went to the cave area to arrest Ruckman on the state
warrant. When the authorities arrived at the scene, Ruckman was nowhere to be
found. In this setting, the authorities searched the cave. Certain firearms were
found and seized. About this time, Ruckman appeared on the scene, and he was
arrested and given his Miranda warning. Asked if there were any other
weapons in the cave, Ruckman stated that there was a "shotgun in the corner."
The shotgun was located and seized. Ruckman was then taken to the local jail.

Eight days later, the BLM agents and local authorities returned to the cave to
"clean it out" and remove Ruckman's belongings. In cleaning out, the
authorities found, and seized, the anti-personnel booby traps which formed the
basis for the present prosecution.

Counsel agree that the ultimate issue is whether Ruckman had a right under the
Fourth Amendment to be free from search, without a warrant, of his "home," in
this case a natural cave, and counsel further agree that the more immediate
issue is whether Ruckman had a subjective expectation of privacy in the cave,
and, if so, whether his expectation is one which society is prepared to recognize
as being reasonable under the circumstances. Katz v. United States, 389 U.S.
347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967). See also Rakas v. Illinois,
439 U.S. 128, 151, 99 S.Ct. 421, 434, 58 L.Ed.2d 387 (1978).

We shall assume that Ruckman entertained a subjective expectation of privacy,

i.e., absent a search warrant or probable cause or exigent circumstances, none
of which is contended for by the government, his cave could not be searched by
any law enforcement officers without violating Fourth Amendment rights.
However, the record, as we read it, contains no statement by Ruckman that he
had any subjective expectation of privacy. Perhaps the filing of the motion to
suppress presupposes such subjective expectation. In any event, we assume
such subjective expectation. No doubt Ruckman would so testify. The real issue
is whether such subjective expectation is reasonable under the circumstances of
the case. Stated differently, the issue is whether the cave comes within the
ambit of the Fourth Amendment's prohibition of unreasonable searches of
"houses." Under the circumstances, we conclude that Ruckman's cave is not
subject to the protection of the Fourth Amendment.

Ruckman was admittedly a trespasser on federal lands and subject to immediate

ejectment. With respect to its own lands, the government has the rights of an
ordinary proprietor, i.e., to maintain its possession and to prosecute trespassers.
United States v. Osterlund, 505 F.Supp. 165, 167 (D.Colo.1981), aff'd, 671
F.2d 1267 (10th Cir.1982). While he had been living off the land for several
months, the cave could hardly be considered a permanent residence. Counsel
himself describes Ruckman as "just camping out there for an extended period of
time." Ruckman's subjective expectation of privacy is not reasonable in light of
the fact that he could be ousted by BLM authorities from the place he was
occupying at any time. While it has been often stated, the Fourth Amendment
protects people, and not places (Katz, supra, 389 U.S. at 353, 88 S.Ct. at 512),
any determination of just what protection is to be given requires, in a given
case, some reference to a place. And the place in this instance was on federal
(BLM) land. The government's authority over federal lands has been clearly
stated by the Supreme Court. "[T]he power over the public land thus entrusted
to Congress is without limitations." United States v. San Francisco, 310 U.S.
16, 29, 60 S.Ct. 749, 756, 84 L.Ed. 1050 (1940), reh'g denied, 310 U.S. 657, 60
S.Ct. 1071, 84 L.Ed. 1420 (1940). This power derives from the Constitution. "
[A]rticle IV, Sec. 3, cl. 2 of the Constitution provides that 'the Congress shall
have Power to dispose of and make all needful Rules and Regulations
respecting the Territory and other Property belonging to the United States.' " Id.
A necessary ancillary to this regulatory power over lands within the public
domain is the power to control their occupancy and use, to protect them from
trespass and injury and to prescribe the conditions upon which others may
obtain rights...." Utah Power & Light Co. v. United States, 243 U.S. 389, 405,
37 S.Ct. 387, 389, 61 L.Ed. 791 (1917). The Fourth Amendment itself
proscribes, inter alia, an unreasonable search of "houses." Without belaboring
the matter, we decline to hold that the instant case comes within the ambit of

the Fourth Amendment. The fact that Ruckman may have subjectively deemed
the cave to be his "castle" is not decisive of the present problem. As a Ninth
Circuit case involving invalid mining claims on public lands pointed out, "[A]
person, under the guise of repeatedly locating invalid mining claims, may not
use public lands primarily for residential purposes." United States v. Allen, 578
F.2d 236, 237-38 (9th Cir.1978).
10

We do not regard the circumstances underlying the "public telephone booth"

(Katz, supra ) or "public restroom" (People v. Triggs, 95 Nev. 436, 506 P.2d
232 (1973)) cases to be of particular relevance. The "open field" cases perhaps
have more relevance. In explaining the distinction between "open fields" and
the "certain enclaves" which should be free from arbitrary government
interference, the Supreme Court has noted that, as a practical matter, "open
fields" usually are accessible to the public and the police in ways that a home,
an office or commercial structure would not be. Oliver v. United States, 466
U.S. 170, 179, 104 S.Ct. 1735, 1741, 80 L.Ed.2d 214 (1984). This Court has
found that a person has no legitimate expectation of privacy even in his own
private property where that property is surrounded by barbed wire fences, even
if there are "No Trespassing" signs posted. United States v. Rucinski, 658 F.2d
741, 743-46 (10th Cir.1981), cert. denied, 455 U.S. 939, 102 S.Ct. 1430, 71
L.Ed.2d 649 (1982). Other cases with some degree of relevancy include People
v. Sumlin, 105 Misc.2d 134, 431 N.Y.S.2d 967 (1980), in which the New York
County Supreme Court held that a casual guest of the employee of a squatter in
a city-owned abandoned building did not have any expectation of privacy and
that defendant, as a trespasser who was wrongly on premises, could not claim
Fourth Amendment violation of rights. Id., at 969-70. In People v. Smith, 113
Misc.2d 176, 448 N.Y.S.2d 404 (1982), the court held that even if defendant
was a subtenant, he could not derive any rights from one who has none, i.e., a
squatter. Id., 406.

11

A case having perhaps greater relevance than those above cited is Amezquita v.
Hernandez-Colon, 518 F.2d 8 (1st Cir.1975), cert. denied, 424 U.S. 916, 96
S.Ct. 1117, 47 L.Ed.2d 321 (1976). There "squatters" moved onto land owned
by the Commonwealth of Puerto Rico and built structures thereon. When the
government threatened to oust them, the squatters brought a civil rights action
seeking injunctive relief and damages. The district court ruled for the squatters.
On appeal, the First Circuit reversed. In holding that the squatters had no
reasonable or legitimate expectation of privacy, the First Circuit opined that,
under the circumstances of that case, a claim that the squatters had a reasonable
expectation of privacy was "ludicrous." Amezquita, supra, at 11. (Legitimacy
of a privacy claim is determined by the totality of the circumstances. Rakas,
supra, 439 U.S. at 152, 99 S.Ct. at 435. The test of legitimacy is not whether

the individual chooses to conceal assertedly "private" activity but whether the
government's intrusion infringes upon the personal and societal values
protected by the Fourth Amendment. Oliver, supra, 466 U.S. at 182-83, 104
S.Ct. at 1743.) Further, considering what constitutes a "home" for Fourth
Amendment purposes, the First Circuit commented as follows:
12 whether a place constitutes a person's "home" for this purpose cannot be
But
decided without any attention to its location or the means by which it was acquired;
that is, whether the occupancy and construction were in bad faith is highly relevant.
Where the plaintiffs had no legal right to occupy the land and build structures on it,
those faits accomplis could give rise to no reasonable expectation of privacy even if
the plaintiffs did own the resulting structures.
13

Amezquita, supra, at 12.

14

Judgment affirmed.
McKAY, Circuit Judge, dissenting:

15

The majority's opinion is a threat to those who fish in the Wind River
mountains, those who enjoy survivalist expeditions, and those senior citizens in
their recreational vehicles in Bryce Canyon National Park who hold "Golden
Eagle" or "Golden Age" Passports. Under the majority's sweeping language,
they could be found at any time to be "trespassing" on federal lands and be
stripped of any legitimate expectation of privacy in their temporary dwellings,
since those dwellings fail to constitute "houses." The majority, in effect, holds
that the right of anyone who is on public lands to be free from warrantless
searches turns on whether they have overstayed their permit. Failing,
presumably even on technical grounds, to have a "legal right" to occupy land
prevents any reasonable expectation of privacy in a dwelling on such land from
arising, even if one owns the structure searched on the illegally occupied land.1

I.
16

In 1985, a state bench warrant for the arrest of Frank William Ruckman was
issued in Washington County, Utah, for failure to appear with respect to a
misdemeanor charge. After receiving information that Mr. Ruckman was living
in a natural cave on Bureau of Land Management (BLM) property
approximately twenty-four miles northeast of St. George, Utah, six heavily
armed officers, both local sheriff's officers and federal law enforcement
officers, proceeded to the cave site. When they arrived, they found a cave "that
had wood and other articles placed in its opening so as to form some kind of

living quarters. There was a wooden door that was closed but not locked and no
one was in the vicinity." Brief of United States at 2. Without a search warrant,
the officers entered the cave and seized three weapons. Mr. Ruckman, who
arrived approximately one hour later and was arrested, informed the officers of
a fourth weapon in the cave, which was then also seized.2
17

Approximately eight days later, after Mr. Ruckman was incarcerated, BLM
officers and local authorities returned to the cave, again without a warrant, "in
an effort to clean it out and remove all this stuff that was in there, the door and
everything else." Statement of Attorney for the Government, Transcript of
Hearing on Motions at 20. While there, they found and seized the booby-trap
devices that supported the fifth count of the indictment against Mr. Ruckman.
He was subsequently convicted under this count of possession of an
unregistered firearm in violation of 26 U.S.C. Sec. 5861(d) (1982).3

II.
18

The court reaches its expansive result by first articulating the issue at hand as
"whether the cave comes within the ambit of the Fourth Amendment's
prohibition of unreasonable searches of 'houses.' " Maj. op. at 1472. That Mr.
Ruckman lived in the cave for eight months, constructed a wall and door to the
cave with wooden boards and other material, and installed the rudimentary
comforts of home (including a bed, camp stove, and lantern) is not enough,
says the court, to raise the fourth amendment priority that has always attached
to one's residence, Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371,
1382, 63 L.Ed.2d 639 (1980), since he was "just camping out there for an
extended period of time." Maj. op. at 1473. This conclusion is at odds with the
multiple concessions on the part of the Government that Mr. Ruckman was
"living" in the cave. See Statement of Attorney for the Government, Transcript
of Hearing on Motions at 21-22 ("the Government searched that place which he
was clearly using as a dwelling and they did that without a warrant"); record,
vol. 1, document 11, at 2 ("Inside the dwelling was clear evidence that a person
was living in and occupying that space."); id. at 4 (Government conceding that
defendant "moved in"); Brief of United States at 5 (referring to cave "he was
living in"); id. at 6 (referring to cave "in which he was living"). Moreover,
although phrasing the issue as whether the cave constitutes a "house," much of
the court's reasoning immediately following fails to analyze the characteristics
of a house, but rather focuses on the fact that Mr. Ruckman was a "trespasser"
on federal lands and, as such, could not have a reasonable expectation of
privacy in his wilderness home. Viewing these as separate grounds for the
court's holding, I find both fundamentally flawed and must respectfully dissent.

III.
19

First, a finding that the cave fails to qualify as a "house" does not automatically
mean that no legitimate expectation of privacy can attach to the cave for fourth
amendment purposes. Even if Mr. Ruckman was "just camping out there for an
extended period of time," it is not clear to me at all that a camper has no
legitimate expectation of privacy in his temporary dwelling.

20

After declining to equate the cave with a house, the court jumps to the
conclusion that Mr. Ruckman can have no legitimate expectation of privacy in
the cave. This analysis implicitly assumes that only homes and houses are
accorded fourth amendment protection. This is simply untrue. The Supreme
Court acknowledged as much when it recognized "the unremarkable
proposition that a person can have a legally sufficient interest in a place other
than his own home so that the Fourth Amendment protects him from
unreasonable governmental intrusion into that place." Rakas v. Illinois, 439
U.S. 128, 142, 99 S.Ct. 421, 429, 58 L.Ed.2d 387 (1978) (citing Jones v.
United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)). In ending the
analysis after the myopic inquiry as to whether a cave is a house, the court fails
to appreciate both the underlying, broader concerns of the fourth amendment
and the ramifications its opinion will have in other contexts. Such inquiries as
the court's are, of course, relevant as helpful guides, but should not be
undertaken mechanistically. They are not ends in themselves; they merely aid in
evaluating the ultimate question in all fourth amendment cases--whether the
defendant had a legitimate expectation of privacy, in the eyes of our society, in
the area searched.

21

Second, that Mr. Ruckman may have been a "trespasser" on federal lands
should not be dispositive--either in good sense or in keeping with the evolution
of fourth amendment theory. Such a position can lead to absurd results. Take,
for example, the camper whose "Golden Eagle Passport," see 36 C.F.R. Sec.
71.5 (1985), has expired but yet who nevertheless remains on federal land an
extra day. Is he suddenly stripped at midnight of any reasonable expectation of
privacy in his tent or recreational vehicle?4 The court includes privately owned
structures in its sweep. Can they now be searched at will by Government
authorities, even though at a minute before midnight, such a search would
violate the camper's fourth amendment rights? A right as fundamental as the
right to be free from unreasonable searches and seizures should not turn on the
mere happenstance of a permit's expiration date. Yet, that is the effect of the
majority's holding.

22

Moreover, what of those BLM lands that are not "Designated Entrance Fee

Areas" under 36 C.F.R. Sec. 71.3 (1985), as is likely the case here? Regulations
issued by the Secretary of the Interior to control the "use, occupancy and
development of the public lands through leases, permits and easements," 43
C.F.R. Sec. 2920.0-3 (1985), pursuant to the Federal Land Policy and
Management Act of 1976, 43 U.S.C. Secs. 1732, 1740 (1982), create some
doubt whether Mr. Ruckman was, indeed, using federal land in an unauthorized
manner. The Secretary's regulations state that "[n]o land use authorization is
required under the regulations of this part for casual use of the public lands." 43
C.F.R. Sec. 2920.1(d) (1985). "Casual use" is defined as "any short term noncommercial activity which does not cause appreciable damage or disturbance to
the public lands, their resources or improvements, and which is not prohibited
by closure of the lands to such activities." 43 C.F.R. Sec. 2920.0-5(k) (1985).
The Government has made no showing that the land encompassing the cave
here was "prohibited by closure." Whether an eight-month residency in this
cave constitutes "short term" activity is admittedly subject to debate. The
Government, however, has not carried its burden of showing that Mr. Ruckman
was a trespasser, other than to repeatedly refer to the cave as "the government
cave." Brief of Plaintiff-Appellee at 3, 6; record, vol. 1, document 11, at 4.
23

More fundamental and worrisome than these observations, however, is that the
court takes a giant step backward in fourth amendment analysis when it hinges
its determination of whether Mr. Ruckman had a legitimate expectation of
privacy in his dwelling on whether or not he was a "trespasser." In the early
days of fourth amendment doctrine, property interests were not only a central
tenet of search and seizure analysis, they were determinative. Persons
aggrieved by searches and seizures needed to prove a property interest in the
place searched or item seized superior to that of the Government's in order to
gain redress through an action for trespass or replevin. So strong was the notion
of property interests to search and seizure doctrine that "[n]o separate
governmental interest in seizing evidence to apprehend and convict criminals
was recognized; it was required that some property interest be asserted"--a rule
better known as the "mere evidence" rule. Warden v. Hayden, 387 U.S. 294,
303, 87 S.Ct. 1642, 1648, 18 L.Ed.2d 782 (1967). Similarly, no fourth
amendment violation was deemed to occur without a trespass by the
Government upon property of the defendant--a rule better known as the
"trespass doctrine." Goldman v. United States, 316 U.S. 129, 134-36, 62 S.Ct.
993, 995-96, 86 L.Ed. 1322 (1942); Olmstead v. United States, 277 U.S. 438,
457, 464, 466, 48 S.Ct. 564, 565, 567, 568, 72 L.Ed. 944 (1928). However, as
our society evolved, the emphasis of the protection we enjoy from
unreasonable governmental searches and seizures also evolved. Nearly twenty
years ago, the Supreme Court recognized this evolution:

24

The premise that property interests control the right of the Government to
search and seize has been discredited. Searches and seizures may be
"unreasonable" within the Fourth Amendment even though the Government
asserts a superior property interest at common law. We have recognized that the
principal object of the Fourth Amendment is the protection of privacy rather
than property, and have increasingly discarded fictional and procedural barriers
rested on property concepts.

25

Warden, 387 U.S. at 304, 87 S.Ct. at 1648.

26

The landmark case of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19
L.Ed.2d 576 (1967), cemented this privacy perspective when it disregarded the
"trespass doctrine" enunciated in Olmstead and Goldman. Recognizing that, in
our modern society, the fourth amendment "protects people, not places," the
Court declared that what a person "seeks to preserve as private, even in an area
accessible to the public, may be constitutionally protected. Id. at 351-52, 88
S.Ct. at 511 (emphasis added). Replacing the outmoded property-interest test
was one articulated in Justice Harlan's concurrence: "first that a person have
exhibited an actual (subjective) expectation of privacy and, second, that the
expectation be one that society is prepared to recognize as 'reasonable.' " Id. at
361, 88 S.Ct. at 516.

27

This focus on the expectation of privacy rather than on legal property interests
in the place searched or items seized has not diminished since Katz; it has
grown stronger. In Rakas, the Court stated that

28
arcane
distinctions developed in property and tort law between guests, licensees,
invitees, and the like, ought not to control....
29

... Katz held that capacity to claim the protection of the Fourth Amendment
depends not upon a property right in the invaded place but upon whether the
person who claims the protection of the Amendment has a legitimate
expectation of privacy in the invaded place.

30

439 U.S. at 143, 99 S.Ct. at 430 (emphasis added). In other words, failing to
have a legal property right in the invaded place does not, ipso facto, mean that
no legitimate expectation of privacy can attach to that place. If it did, the
above-quoted sentence describing Katz would be nonsensical, for fourth
amendment protection would then, indeed, turn on a property right in the
invaded place. Yet, this archaic analysis is the very analysis to which the
majority subscribes. In Rakas, the Court reiterated that "[e]xpectations of

privacy protected by the Fourth Amendment, of course, need not be based on a

common-law interest in real or personal property, or on the invasion of such an
interest." Id. at 144 n. 12, 99 S.Ct. at 431 n. 12; see also United States v.
Salvucci, 448 U.S. 83, 91, 100 S.Ct. 2547, 2552, 65 L.Ed.2d 619 (1980) ("This
Court has repeatedly repudiated the notion that 'arcane distinctions developed
in property and tort law' ought to control our Fourth Amendment inquiry."
(citing Rakas )); Rawlings v. Kentucky, 448 U.S. 98, 105, 100 S.Ct. 2556,
2561, 65 L.Ed.2d 633 (1980) ("Rakas emphatically rejected the notion that
'arcane' concepts of property law ought to control the ability to claim the
protections of the Fourth Amendment."). To reach its result, the majority in this
case, by reverting to discredited notions and obsolete fourth amendment
analysis, flies in the face of this evolutionary precedent and of what the fourth
amendment attempts to protect for us all.
31

So, at bottom, the critical inquiry here should be whether Mr. Ruckman had a
legitimate expectation of privacy in the cave, so that he should be free, not from
all searches, but from unreasonable searches--those undertaken without a
warrant, as in this case, and without justification to forego a warrant.5
Discussions concerning whether Mr. Ruckman was a "trespasser" or whether
the cave was a "house" are merely red herrings when they mask this essential
inquiry.

32

The court assumes that Mr. Ruckman entertained a subjective expectation of

privacy and states that the "real issue is whether such subjective expectation is
reasonable." Maj. op. at 1472. I believe his expectation of privacy in his
wilderness home was both reasonable and legitimate. It was perfectly legitimate
for him to expect to be free from a warrantless search of the dwelling in which
he lived continuously for eight months. He "took normal precautions to
maintain his privacy," Rawlings, 448 U.S. at 105, 100 S.Ct. at 2561, by
building a wall with a door of wooden boards and other materials, thereby
sealing off the entrance to the cave. All his personal belongings were located
therein. The cave was his sole living quarters in every sense, furnished with a
bed and other crude furniture.

33

This finding does not mean that Mr. Ruckman was entitled to live in this cave.
It does not mean that the Government has no recourse to remove him; the
Government is free to prosecute him for any laws he may have violated. It
simply means that the Government may not search his dwelling without a
search warrant, as prescribed by the fourth amendment, or without sufficient
justification excusing the warrant. The fact that Mr. Ruckman may have
violated a federal law by living in this cave (a fact not established by this
record) simply does not strip him of all his constitutional rights--just as the

camper who overstays his Golden Eagle Passport, and thus trespasses on
federal land, does not thereby forfeit his right to be free from warrantless
searches of his tent or recreational vehicle in the absence of an exception to the
warrant requirement. If anything, I would expect the legitimacy of "trespassing"
Mr. Ruckman's expectation of privacy to be more clear-cut than that of the
trespassing camper. The camper's residency in his tent would usually be
extremely short term, unlike the eight months Mr. Ruckman spent living in the
cave. Moreover, the camper concededly has another, primary residency,
whereas Mr. Ruckman's sole living quarters were this cave.
34

I would, therefore, reverse.

"Where the plaintiffs had no legal right to occupy the land and build structures
on it, those faits accomplis could give rise to no reasonable expectation of
privacy even if the plaintiffs did own the resulting structures." Maj. op. at 1474
(quoting and adopting Amezquita v. Hernandez-Colon, 518 F.2d 8, 12 (1st
Cir.1975))

These four weapons constituted the evidence supporting the first four of the
five counts of the federal indictment instituted against Mr. Ruckman. He was
charged with violating 18 U.S.C. app. Sec. 1202(a)(1) (1982), which provides
in pertinent part:
Any person who--(1) has been convicted by a court of the United States or of a
State or any political subdivision thereof of a felony ... and who receives,
possesses, or transports in commerce ... any firearm shall be fined not more
than $10,000 or imprisoned for not more than two years, or both.
In 1952, Mr. Ruckman was convicted in Illinois of being an accessory after the
fact of armed robbery, and it was this felony that served as the underlying crime
for purposes of Sec. 1202(a)(1). These first four counts of the indictment were
dismissed during trial for reasons not related to the search at issue.

26 U.S.C. Sec. 5861 provides in pertinent part: "It shall be unlawful for any
person--(d) to receive or possess a firearm which is not registered to him in the
National Firearms Registration and Transfer Record...."
The penalty for violating this provision is found in 26 U.S.C. Sec. 5871 which
provides: "Any person who violates or fails to comply with any provisions of
this chapter shall, upon conviction, be fined not more than $10,000, or be
imprisoned not more than ten years, or both, and shall become eligible for
parole as the Board of Parole shall determine."

Although the Supreme Court has extended the so-called automobile exception
to mobile homes in California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85
L.Ed.2d 406 (1985), it did not do away with the threshold requirement that
there be sufficient probable cause to search. No such showing was made in this
case

The court asserts that the Government has plenary authority over federal land,
but fails to relate the significance of this authority to this case. Rather, the court
then immediately states in the next sentence that "[t]he Fourth Amendment
itself proscribes, inter alia, an unreasonable search of 'houses.' " Maj. op. at
1473
I readily concede that the Federal Government's regulatory power "over lands
within the public domain [gives it the] power to control their occupancy and
use, to protect them from trespass and injury and to prescribe the conditions
upon which others may obtain rights...." Id. (quoting Utah Power & Light Co.
v. United States, 243 U.S. 389, 405, 37 S.Ct. 387, 389, 61 L.Ed. 791 (1917)).
The Federal Land Policy and Management Act of 1976 and the regulations
promulgated thereunder that I cited earlier in this opinion attest to this
authority. However, in light of the fourth amendment cases discussed above, I
fail to see how the Government's regulatory power automatically strips Mr.
Ruckman of any legitimate expectation of privacy in this case. Furthermore, I
certainly fail to understand how this authority strips "trespassing" campers of
any legitimate expectation of privacy in the tents and recreational vehicles
which they own; yet such trespassers with their privately owned "structures"
are within the court's broad sweep. See supra note 1.